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Thursday, September 27, 2012

Warring over the sentimental items in an estate

I've come to realize over the years that a dispute over a parent's estate is more likely to break out over personal possessions than it is over money. Some of you might be skeptical, but I firmly believe this to be the case. A case where eleven siblings fought over one gold ring is an extreme case, and I've attached a link here for you to read a blog post by www.allaboutestates.ca summarizing the case and how it was resolved.

Clients often ask me how an executor will divide the household and personal goods among the children, and I'm always happy to give some suggestions on how to avoid a dispute. Depending on the number of children, the number and value of the items and the personalities involved, there are some options. I've listed a few below. You'll note that sticking a piece of masking tape on the bottom or back of items with someone's name on it is NOT on the list, as that is not legally effective.

1. Give some items that you don't need to the children while you are alive.
2. Hold a family meeting to talk about your estate plans and tell the children how you plan to divide up the items (followed by either #3 or #4 below). Give them a chance to provide you with some feedback that you might use to re-think your decision.
3. Prepare a handwritten list of who is to get what and keep it with your will. It might be helpful to talk to your estate planning lawyer about this so that you get the right form for your list. Your lawyer can also give you some guidelines about doing the list properly. For example, a list like this should NOT include sums of money.
4. Include some of the items in your will as specific gifts to certain people. Normally people would only include gifts that are important enough that they won't change their minds about them.
5. In your will, give your executor the discretion to settle disputes about who gets the household items. This might seem unfair to the kids if one of the people fighting over an object is also the one who gets to settle the argument, but someone has to have the ability to put an end to it.
6. In your will, direct that everything is to be sold and the money split equally. This is pretty drastic but sometimes parents feel it's the best way.

Most of my clients have told me that preventing disputes among the children is one of their main estate-planning goals. Thinking about the personal and household items and dealing with them clearly and thoroughly in your documents will help you reach that goal.

Lynne is the author of 10 books about estate planning, and one book about legal history.

Lynne is the editor of MC2, the national magazine of Mensa Canada.

Lynne is the former co-host of The Law Show, a weekly program on VOCM radio.

Lynne is a Learning Group Facilitator (online instructor) for the Legal Research and Writing and the Written Advice and Advocacy modules of the Alberta Bar Admission course.

She is a member of the Law Society of Newfoundland and Labrador, the Law Society of Alberta, the Canadian Bar Association, STEP Canada, ADR Atlantic Institute, the Canadian Institute of Certified Executor Advisors, and Mensa Canada.

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